VISHWABHARATHI HOUSE BUILDING CO-OPERATIVE SOCIETY LTD. v. SRI T.N. THIMMARAJACHA

#1. SRI T.N. THIMMARAJACHAR, S/O LATE NARSIMHACHAR, AGED ABOUT 55 YEARS, R/AT NO.491, 14TH MAIN ROAD, 1ST CROSS, SBM COLONY, SRINIVASANAGAR, BSK 1ST STAGE, BENGALURU- 560 050.

#2. SRI.K.R. SATHYANARAYANA, S/O K.V.RAMASWAMY, AGED ABOUT 60 YEARS. - 2 - NC: 2025:KHC:36728 WP No. 32098 of 2024 HC-KAR

#3. SMT.K.S. DAKSHYAINI, W/O K.R.SATHYANARAYANA, AGED ABOUT 56 YEARS. RESPONDENT NOS.2 AND 3 ARE R/AT NO.905/85, 4TH MAIN ROAD, 5TH CROSS, VIDYANARANYAPURAM, MYSORE- 570 008.

#4. SRI.C.R. GOPALAKRISHNA, S/O RAMASHETTY, AGED ABOUT 64 YEARS, R/AT NO.751, 5TH CROSS, 2ND BLOCK, BSK 1ST STAGE, BENGALURU-560050. …RESPONDENTS (BY SRI K.S. MALLIKARJUNAIAH, ADVOCATE FOR C/R1, SRI H.S. CHANDRASHEKAR, ADVOCATE FOR R2 AND R3, SRI GANAPATI BHAT VAJRALLI, ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.09.2024 PASSED ON IA.NO.10, IN O.S.NO.374/2016, ON THE FILE OF LXVI ADDL. CITY CIVIL AND SESSION JUDGE (CCH-67), BENGALURU VIDE ANXRE-A. THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:36728 WP No. 32098 of 2024 HC-KAR CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question an

11.09.2024 passed I.A.No.10 O.S.No.374/2016.

#2. Heard Sri G. Balakrishna Shastry, the learned counsel appearing for the petitioner, Sri K.S. Mallikarjunaiah, the learned counsel for the caveator/respondent No.1, Sri H.S. Chandrashekar, the learned counsel for respondent Nos.2 and 3 and Sri Ganapati Bhat Vajralli, the learned counsel for respondent No.4.

#3. The respondent No.1/plaintiff institutes a suit in O.S.No.374/2016 and on issuance of notice, respondent Nos.2 and 4 filed the written statement. During the subsistence of the proceedings and its progress, on 17.06.2021, an application is filed by the plaintiff seeking deletion/striking out of the additional issue invoking Order 14 Rule 1 and 5 of CPC. The concerned Court after considering the objections, allowed the application by the following order: - 4 - NC: 2025:KHC:36728 WP No. 32098 of 2024 HC-KAR “14) In so far as the suit on hand is concerned, the plaintiff has filed the suit for the relief of permanent injunction. It is the contention of the plaintiff that defendant No.4 society allotted the site to the plaintiff and thereby he came into possession of the same. The plaintiff has stated in his application that a dispute is pending before the Registrar of Co-operative Society in respect of mis-management of the society by defendant No.4. The said dispute is nothing to do with the possession of the plaintiff over the suit schedule property. Now it is to be seen whether the Registrar of Co-operative Societies is entitled to decide a dispute with regard to the possession of the site by the plaintiff. Ofcourse the answer is 'No'. The Registrar of Co-operative Society is not empowered to decide any dispute with regard to the possession of the sites allotted by it by any persons. Except the civil Court no other authority can decide the possession of either parties in a suit for permanent injunction. Under these circumstances the suit being one for the relief of permanent injunction the bar provided under section 70 and section 118 of Karnataka Co-operative Societies Act is not applicable to the case on hand where plaintiff has sought for the relief of permanent injunction in order to protect his possession of the site allotted by defendant No.4 society. Under these circumstances though this Court framed additional issue to the effect that whether the suit is hit by section 70(1)(a) and section 70(1)(b) r/w section 118 of Karnataka Co- - 5 - NC: 2025:KHC:36728 WP No. 32098 of 2024 HC-KAR operative Societies Act, 1959, in view of the above discussion the said issue is to be answered in the Negative. Therefore no purpose would be served by considering the additional issue as preliminary issue and again hearing the parties on the said issue by treating it as preliminary issue. It would be a futile exercise to hear the parties on the said issue, in view of the above discussions. Under these circumstances there are ample materials to strike out the additional issue framed by this Court on 24.05.2021. Therefore point No. 1 is answered in the Affirmative. 15) POINT No.2: In view of my above findings, I proceed to pass the following:- ORDER I.A.No.10 filed by the plaintiff under Order 14 Rule 1 and section 5 of Code of Civil Procedure is hereby allowed. Consequently additional issue framed by this Court dated 24.05.2021 is deleted.”

#4. The learned counsel appearing for the petitioner submits that it is this order that has driven the petitioner to this Court. The learned counsel submits that without hearing the parties, the order is passed deleting/striking out the additional issue with regard to maintainability. - 6 - NC: 2025:KHC:36728 WP No. 32098 of 2024 HC-KAR

#5. The learned counsel appearing for the respondents would dispute the same.

#6. The order quoted supra would clearly indicate that the concerned Court was considering the application holding that there was no purpose served by considering the additional issue as preliminary issue and again hearing the parties and treating it as a preliminary issue. In the teeth of the said observation of the concerned Court, it transpires that the Court has obfuscated itself as to allow the issue or reject the issue on reasons or without hearing the parties. Even if there is hearing of the parties in the case, the ultimate decision of the concerned Court is that hearing would not become necessary on the said preliminary issue. On the sole score of the Court not steering clear whether the matter requires hearing or otherwise, preliminary issue to be considered at the outset or otherwise, the order rendered unsustainable and unsustainability of the order would necessarily lead to its obliteration. Therefore, the application under I.A.No.10 filed by the plaintiff seeking striking off an additional issue with regard - 7 - NC: 2025:KHC:36728 WP No. 32098 of 2024 HC-KAR to the maintainability of the suit shall be decided afresh after affording an opportunity of hearing to both the parties.

#7. For the aforesaid reasons, the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 11.09.2024 passed on I.A.No.10 in O.S.No.374/2016 is hereby quashed. (iii) The matter is remitted back to the hands of the concerned Court to pass necessary orders on the application in I.A.No.10 after hearing the parties afresh and pass necessary orders thereon in the next 12 weeks from the date of receipt of the copy of the order. Ordered accordingly. Sd/- (M.NAGAPRASANNA) JUDGE MD List No.: 1 Sl No.: 7